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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
UNITED STATES OF AMERICA, )
) Case No. 02CV0159
Plaintiff, )
)
v. ) Judge: Royce Lamberth
)
THE MANITOWOC COMPANY, INC., ) DECK TYPE: Antitrust
GROVE INVESTORS, INC., and )
NATIONAL CRANE CORP., )
) DATE STAMP: July 31, 2002
Defendants. )
)

HOLD SEPARATE STIPULATION AND ORDER

It is hereby stipulated and agreed by and between the undersigned parties,

subject to approval and entry by the Court, that:

I.

DEFINITIONS

As used in this Hold Separate Stipulation and Order:

A. “Acquirer” means the entity or entities to whom defendants divest the

National Crane or Manitowoc Boom Truck Business.

B. “Manitowoc” means defendant The Manitowoc Company, Inc., a

Wisconsin corporation with its headquarters in Manitowoc, WI, its successors and

assigns, and its subsidiaries (including Manitowoc Boom Trucks, Inc.), divisions,

groups, affiliates, partnerships, joint ventures, and their directors, officers,

managers, agents, and employees.

C. “Grove” means Grove Investors, Inc., a Delaware corporation with its


headquarters in Shady Grove, PA, and its successors and assigns, its subsidiaries,

divisions, groups, affiliates, partnerships, joint ventures, and their directors,

officers, managers, agents, and employees.

D. “National Crane” means National Crane Corporation, a Delaware

corporation with its headquarters in Waverly, NE, its successors and assigns, and

its subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, and their

directors, officers, managers, agents, and employees.

E. “Boom truck” means any stiff boom telescopic crane designed for

mounting on a commercial truck chassis fitted with outriggers for load lift stability.

F. “Manitowoc Boom Truck Business” means Manitowoc Boom Trucks,

Inc. and its line of boom trucks, including:

1. Any and all tangible assets used in Manitowoc’s boom truck

manufacturing business, including Manitowoc’s boom truck production

facility in Georgetown, Texas; manufacturing, assembling and testing

equipment, tooling, and other fixed assets; personal property,

inventory, office furniture, materials, supplies, and other tangible

property and all other assets used exclusively in connection with the

Manitowoc Boom Truck Business; all licenses, permits, and

authorizations issued by any governmental entity or organization in

connection with making or selling boom trucks; all contracts, supply or

teaming arrangements, leases, commitments, and understandings

relating to the Manitowoc Boom Truck Business; all customer lists,

accounts, and credit records of boom truck distributors, dealers, or end

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users; and sales, performance, service and repair, warranty, or other

records relating to the Manitowoc Boom Truck Business; and

2. Any and all intangible assets used in developing, producing, selling,

repairing or servicing Manitowoc, Manitex, USTC, JLG or Pioneer

boom trucks, including but not limited to: (a) the Manitex, USTC, JLG

and Pioneer brand names and all other intellectual property rights

used exclusively in connection with the Manitowoc Boom Truck

Business; (b) with respect to all other intellectual property rights

(except the use of the Manitowoc brand name) used in connection with

both the Manitowoc Boom Truck Business and other nondivested

Manitowoc assets, a transferable, paid-up license, exclusive in the

boom truck field of use; (c) with respect to use of the Manitowoc brand

name, at Acquirer’s option, subject to approval of the United States, at

its sole discretion, a transferable, paid-up license, not to exceed three

years in length, exclusive in the boom truck field of use; (d) all existing

licenses and sublicenses relating exclusively to the Manitowoc Boom

Truck Business; and (e) a transferable, paid-up sublicense, exclusive in

the boom truck field of use, to all other existing licenses and

sublicenses relating to the Manitowoc Boom Truck Business.

Intellectual property rights, as used herein, include, but are not

limited to, patents, licenses and sublicenses, technical information,

computer software and related documentation, know-how, trade

secrets, drawings, blueprints, designs, design protocols, specifications

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for materials, quality assurance and control procedures, design tools

and simulation capability, manuals, and all data concerning historic

and current research and development relating to the Manitowoc

Boom Truck Business.

Manitowoc Boom Truck Business, as used herein, does not include the right to

develop, produce or sell Model S282, a mobile self-erecting tower crane licensed by

Manitowoc from a foreign subsidiary, Potain.

G. “National Crane Boom Truck Business” means National Crane and its

line of boom trucks, including:

1. Any and all tangible assets used in National Crane’s boom truck

manufacturing business, including its boom truck production facility in

Waverly, Nebraska; manufacturing, assembling and testing

equipment, tooling and other fixed assets; personal property,

inventory, office furniture, materials, supplies, and other tangible

property and all other assets used exclusively in connection with the

National Crane Boom Truck Business; all licenses, permits, and

authorizations issued by any governmental entity or organization in

connection with making or selling boom trucks; all contracts, supply or

teaming arrangements, leases, commitments, and understandings

relating to the National Crane Boom Truck Business; all customer

lists, accounts, and credit records of boom truck distributors, dealers,

or end users; and sales, performance, service and repair, warranty, or

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other records relating to the National Crane Boom Truck Business;

and

2. Any and all intangible assets used in developing, producing, selling,

repairing, or servicing National or National Crane brand boom trucks,

including but not limited to: (a) the National Crane and National brand

names and all other intellectual property rights used exclusively in

connection with the National Crane Boom Truck Business; (b) with

respect to all other intellectual property rights used in connection with

both the National Crane Boom Truck Business and other nondivested

Grove assets, a transferable, paid-up license, exclusive in the boom

truck field of use; (c) all existing licenses and sublicenses relating

exclusively to the National Crane Boom Truck Business; and (d) a

transferable, paid-up sublicense, exclusive in the boom truck field of

use, to all other existing licenses and sublicenses relating to the

National Crane Boom Truck Business. Intellectual property rights, as

used herein, include, but are not limited to, patents, licenses and

sublicenses, technical information, computer software and related

documentation, know-how, trade secrets, drawings, blueprints,

designs, design protocols, specifications for materials, quality

assurance and control procedures, design tools and simulation

capability, manuals, and all data concerning historic and current

research and development relating to the National Crane Boom Truck

Business.

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II.

OBJECTIVES

The Final Judgment filed in this case is meant to ensure defendants’ prompt

divestiture of either the National Crane or Manitowoc Boom Truck Business for the

purpose of ensuring the establishment of a viable competitor in the boom truck

industry capable of competing effectively to supply boom trucks in North America

and to remedy the anticompetitive effects that the United States alleges would

otherwise result from Manitowoc’s acquisition of Grove. This Hold Separate

Stipulation and Order ensures, prior to such divestiture, that the National Crane

and Manitowoc Boom Truck Businesses are operated as competitively independent,

economically viable, and ongoing business concerns that will remain independent

and uninfluenced by the consummation of Manitowoc’s acquisition of Grove, and

that competition is maintained during the pendency of the ordered divestiture.

III.

JURISDICTION AND VENUE

This Court has jurisdiction over the subject matter of this action and over

each of the parties hereto, and venue of this action is proper in the United States

District Court for the District of Columbia.

IV.

COMPLIANCE WITH AND ENTRY OF FINAL JUDGMENT

A. The parties stipulate that a Final Judgment in the form attached

hereto as Exhibit A may be filed with and entered by the Court, upon the motion of

any party or upon the Court’s own motion, at any time after compliance with the

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requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. § 16), and

without further notice to any party or other proceedings, provided that the United

States has not withdrawn its consent, which it may do at any time before the entry

of the proposed Final Judgment by serving notice thereof on defendants and by

filing that notice with the Court.

B. Defendants shall abide by and comply with the provisions of the

proposed Final Judgment, pending entry of the Final Judgment by the Court, or

until expiration of time for all appeals of any Court ruling declining entry of the

proposed Final Judgment, and shall, from the date of the signing of this Stipulation

by the parties, comply with all the terms and provisions of the proposed Final

Judgment as though the same were in full force and effect as an order of the Court.

C. Defendants shall not consummate the transaction sought to be

enjoined by the Complaint herein before (1) the Court has signed this Hold Separate

Stipulation and Order and (2) defendants have obtained from their lenders a

written unconditional commitment to release any security interest(s) in the assets

of the National Crane or Manitowoc Boom Truck Business pursuant to a divestiture

under the terms of the Final Judgment.

D. This Stipulation shall apply with equal force and effect to any amended

proposed Final Judgment agreed upon in writing by the parties and submitted to

the Court.

E. In the event (1) the United States has withdrawn its consent, as

provided in Section IV(A) above, or (2) the proposed Final Judgment is not entered

pursuant to this Stipulation, the time has expired for all appeals of any Court ruling

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declining entry of the proposed Final Judgment, and the Court has not otherwise

ordered continued compliance with the terms and provisions of the proposed Final

Judgment, then the parties are released from all further obligations under this

Stipulation, and the making of this Stipulation shall be without prejudice to any

party in this or any other proceeding.

F. Defendants represent that the divestiture ordered in the proposed

Final Judgment can and will be made, and that defendants will later raise no claim

of mistake, hardship, or difficulty of compliance as grounds for asking the Court to

modify any of the provisions contained therein.

V.

HOLD SEPARATE PROVISIONS

Until the divestiture required by the Final Judgment has been accomplished:

A. Defendants shall preserve, maintain, and continue to operate,

respectively, the National Crane and Manitowoc Boom Truck Businesses as

competitively independent, economically viable parts of ongoing competitive

businesses, with management, research, design, development, promotions,

marketing, sales, and operations of such assets held entirely separate, distinct, and

apart from each other’s operations and from those of defendants’ other operations.

Within twenty (20) days after the entry of this Hold Separate Stipulation and

Order, defendants will inform the United States of the steps defendants have taken

to comply with this Hold Separate Stipulation and Order.

B. Defendants shall take all steps necessary to ensure that (1) the

National Crane and Manitowoc Boom Truck Businesses will be maintained and

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operated as independent, ongoing, economically viable and active competitors in the

boom truck industry; (2) management of the National Crane and Manitowoc Boom

Truck Businesses (designated in Section V(J)) will not be influenced by defendants,

except to the extent necessary to carry out defendants’ obligations under this Hold

Separate Stipulation and Order and the proposed Final Judgment; and (3) the

books, records, competitively sensitive sales, marketing and pricing information,

and decision-making concerning research, development, marketing, production,

distribution, or sales of products by or under any of the National Crane and

Manitowoc Boom Truck Businesses will be kept separate and apart from each

other’s operations.

C. Defendants shall use all reasonable efforts to maintain and increase

the research, development, sales, and revenues of the products produced by or sold

under the National Crane and Manitowoc Boom Truck Businesses, and shall

maintain at 2001 levels or previously approved levels for 2002, whichever are

higher, all research, development, product improvement, promotional, advertising,

sales, technical assistance, marketing and merchandising support for the National

Crane and Manitowoc Boom Truck Businesses.

D. Defendants shall provide sufficient working capital and lines and

sources of credit to continue to maintain the National Crane and Manitowoc Boom

Truck Businesses as economically viable and competitive, ongoing businesses,

consistent with the requirements of Sections V(A) and V(B).

E. Defendants shall take all steps necessary to ensure that all the assets

of the National Crane and Manitowoc Boom Truck Businesses are fully maintained

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in operable condition at no less than current capacity and sales, and shall maintain

and adhere to normal product improvement and upgrade and repair and

maintenance schedules for those assets.

F. Defendants shall not, except as part of a divestiture approved by the

United States in accordance with the terms of the proposed Final Judgment,

remove, sell, lease, assign, transfer, pledge or otherwise dispose of any assets of the

National Crane or Manitowoc Boom Truck Business; provided, however, that

nothing in this provision prohibits defendants from selling inventory in the ordinary

course of business or, subject to the terms of Section IV(C)(2), offering a lender a

security interest in assets pursuant to Manitowoc’s preexisting revolving lines of

credit.

G. Defendants shall maintain, in accordance with sound accounting

principles, separate, accurate and complete financial ledgers, books and records that

report on a periodic basis, such as the last business day of every month, consistent

with past practices, the assets, liabilities, expenses, revenues and income of the

National Crane and Manitowoc Boom Truck Businesses.

H. Defendants shall take no action that would jeopardize, delay, or

impede the sale of the National Crane and Manitowoc Boom Truck Businesses.

I. Defendants’ employees with primary responsibility for the research,

design, development, promotion, distribution, sale, and operation of the National

Crane and Manitowoc Boom Truck Businesses shall not be transferred or

reassigned to other areas within the company except for transfer bids initiated by

employees pursuant to defendants’ regular, established job posting policy.

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Defendants shall provide the United States with ten (10) calendar days notice of

such transfer.

J. Prior to consummation of their transaction, defendants Grove and

National Crane shall appoint Dan Wolf to oversee the National Crane Boom Truck

Business and defendant Manitowoc shall appoint Brad Rogers to oversee the

Manitowoc Boom Truck Business, and to be responsible for defendants’ compliance

with this section. Dan Wolf shall have complete managerial responsibility for the

National Crane Boom Truck Business, and Brad Rogers shall have complete

managerial responsibility for the Manitowoc Boom Truck Business, subject to the

provisions of this Final Judgment. In the event either person is unable to perform

his duties, defendants shall appoint, subject to the approval of the United States, a

replacement within ten (10) working days. Should defendants fail to appoint a

replacement acceptable to the United States within this time period, the United

States shall appoint a replacement.

K. Defendants shall take no action that would interfere with the ability of

any trustee appointed pursuant to the Final Judgment to complete the divestiture

pursuant to the Final Judgment to an Acquirer acceptable to the United States.

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L. This Hold Separate Stipulation and Order shall remain in effect until

consummation of the divestiture required by the proposed Final Judgment or until

further order of the Court.

Dated: July 31, 2002.

Respectfully submitted,

FOR PLAINTIFF FOR DEFENDANT


UNITED STATES OF AMERICA THE MANITOWOC COMPANY, INC.

/s/ /s/
Anthony E. Harris, Esquire Darryl S. Bell, Esquire
Illinois Bar No.: 1133713 Quarles & Brady LLP
United States Department of Justice 411 East Wisconsin Avenue
Antitrust Division, Litigation II Section Suite 2040
1401 H Street, NW Milwaukee, WI 53202-4497
Suite 3000 Telephone No.: (414) 277-5123
Washington, DC 20530
Telephone No.: (202) 307-6583
FOR DEFENDANTS
GROVE INVESTORS, INC. and
NATIONAL CRANE CORPORATION

/s/
Michael L. Weiner, Esquire
Skadden Arps Slate Meagher
& Flom LLP
Four Times Square
New York, NY 10036
Telephone No.: (212) 735-3000

ORDER

IT IS SO ORDERED by the Court, this 31st day of July 2002.

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/s/
United States District Judge

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